exploring the mix of sacred and secular

Religion and the Rule of Law in the US

By Paul A. Djupe and Andrew R. Lewis

On February 4, on the heels of a stay of his immigration ban by a Washington State federal district court judge, Trump pulled out his Android phone and started tweeting toward a constitutional crisis. Referring to the “opinion of this so-called judge,” he argued that the temporary ruling, “which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” The administration’s brief to the Appellate Court to reinstate the ban argued that the president had “unreviewable authority” regarding the country’s borders. The Court did not agree and declined to undo the stay. A hearing is set for Feb. 6.

Many have cried foul at Trump’s attacks on institutions that check executive power, especially the media and now the courts, which motivate our inquiry. Who holds the courts in high esteem? Is there a public bastion of support for an independent judiciary? Academics have long argued that judicial independence is critical in the enforcement of human rights around the world, so the stakes are high. Of course, we are particularly interested in the distribution across American religion. And given that religious organizations can help shape and reinforce beliefs, the degree to which religious groups are supportive may be critical to maintaining a functional Constitutional structure.

We gathered data to address a related set of question last March (2016) as Senate Republicans were holding up the nomination of Merrick Garland to the high Court.[1] We wondered who had confidence in the court system, with our attention focused on two important components of a religious group’s public presence – majority status and the degree to which they value religious authority.

Minorities have long used the court system to level the playing field and we expect religious minorities to have greater confidence. We use two measures – one objective and the other a subjective perception of being in the minority or majority. Religious authority is akin to dogmatism[2] – that there is one right answer – which suggests that those who reject relativism and believe in the rightness of their faith would have less respect for a legal process set up to hear both sides. And here’s where it may get interesting; we expect that religious authoritarians would be especially sensitive to minority status that emphasizes threats to their worldview. That is, authoritarianism may reinforce majority status or it may counteract minority status.

Figure 1 below shows average confidence levels toward the American courts system on a 1 (no confidence at all) to 5 (complete confidence) scale. Three religious traditions stand out because of their confidence in the courts. Muslims have by far the greatest confidence, with Jews and Catholics (who hold a majority on the Court) not far behind. Evangelicals and Mainline Protestants lie indistinguishably (at “Some confidence”), while both Black Protestants and religious nones have lower than average confidence in the courts. Objective majority status could be playing a role, though it is not straightforward because Black Protestants and religious nones express less confidence.

Figure 1 – How Much Confidence in the Courts do People Have Across Religious Traditions?

Perceptions of majority status combine with religious authority to shape confidence in courts. Their combination tells a powerful story about the very different ways in which religious groups think about governmental institutions. Figure 2 below shows that minority status does not affect the confidence in courts among those who do not see religion as authoritative (solid line) – it is consistently high. However, religious authoritarians’ confidence in the courts drops considerably as their majority status weakens.[3]

Our explanation is that religious authoritarians show greater support for courts when they are convinced they will issue the correct result. Being part of the majority allows them to feel a part of the selection of judges on the courts. When religious authoritarians are minorities, their confidence in courts drops, likely because they are unconvinced the right result will prevail. By contrast, religious non-authoritarians (relativists) are constant in their higher levels of support, showing more confidence in the legal process rather than placing emphasis on any particular outcome.

We can gain further credence in this interpretation because support for democratic norms – e.g., “You can’t be sure an opinion is correct unless people are free to argue against it.” – follows the same pattern as Figure 2. Support for these bedrock propositions of democratic governments fall considerably for religious authoritarians who perceive themselves to be in minority positions. They are more reticent to mandate the need for an equal exchange of views when the result is not ensured.

Evangelicals (yes, evangelicals have by far the highest religious authority scores) have always had an embattled mentality, as Christian Smith has argued, but that feeling of being under siege has surely intensified as cultural battles have been steadily lost in courts against their anti-gay marriage position in Obergefell v. Hodges and against the photographer, baker, and florist dissenters in various cases and administrative actions. The rhetoric from Trump and many others that religious freedom is under attack in America may have given evangelicals more than enough argument to rethink their confidence in courts and legal processes. If this holds, we would expect that a substantial part of Trump’s base will join him in his most recent attack on the judiciary.

Of course, one of the dominant narratives about evangelical support for Trump is that he would deliver a conservative Supreme Court nominee, which he did in Neil Gorsuch– see religioninpublic.blog insight from Dan Bennett and Andy Lewis. In a way, this confirms our story since they are using majoritarian electoral politics to tip the ideological balance to restore their confidence in the courts.

These results are particularly important in how they address a line of argument we have been developing for several years about the role of rights in the politics of religious conservatives. Religious conservatives have often been described as communitarians, so any appeal of rights talk offers a significant departure. We found such an appeal from a hypothetical candidate in one article. We also found that hearing a religious liberty claim from a clergy person helped evangelicals become more tolerant of a disliked group. A rights-claiming elite in a new era of waning evangelical influence seemed to offer the right conditions to bring evangelicals into the democratic process fold – trading in communitarianism for liberalism. But 2016 changed some of the dynamics (at least temporarily), and evangelicals have embraced the (non-religious) authoritarian Tweeter-in-Chief against the wishes of some more moderate and tolerant evangelical elites, such as Russell Moore. Only time will tell if evangelicals continue to pursue the politics of liberalism or authoritarianism.

Andrew R. Lewis is an Assistant Professor at the University of Cincinnati. His research covers the intersection of religion, law, and politics in the U.S. You can follow him onTwitterand see more of his research on hispersonal website.

Notes

1. The survey was administered in March 2016 via the Qualtrics interface to a sample of 1,000 respondents provided by Survey Sampling International. Respondents were balanced by census region and gender; though a non-probability sample, the participants look largely representative of the national population.

2. Three questions went into making the religious authority variable (a higher score means to disagree with these statements): “Religious truth is what the congregation makes of it,” “Religion needs to adapt to the modern culture in order to gain and keep members,” and “Religion needs to adapt to the modern culture in order to be relevant.” Religious authoritarians reject all three.

3. Yes, the religious authority measure is correlated with a more traditional measure of authoritarianism (child rearing values), though it is weak (r=.08, p=.01).